The twice-monthly “Dear Ethics Lawyer” column is part of a training regimen of the Legal Ethics Project, authored by Mark Hinderks, former managing partner and counsel to an AmLaw 200 firm. Read More

Duties to Opponents and Third Parties

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Q: Dear Ethics Lawyer, Yesterday I received findings of fact and conclusions of law in which the judge in a court-tried case decided against our client. This morning, I received a copy of an e-mail to the judge from opposing counsel congratulating the judge on what she characterized as a scholarly decision and bemoaning the fact that the judge was recently passed over for an appellate court appointment. I believe from the tone and content of the email that this was sent to me by mistake, and it was actually intended as a private message. Was this an improper ex parte communication? Do I have obligation to report this conduct?

Continue Reading July 1 Issue – Ex Parte Communications

Q: Dear Ethics Lawyer, I represent a client in litigation during discovery. May I tell an unrepresented third-party witness that they are not obligated to speak to opposing counsel about the matter? May I ask our client to reach out to third-party witnesses with which the client has an ongoing relationship to ask them not to speak to opposing counsel about the matter?

Continue Reading July 3 Issue – Third-Party Witnesses

Q: Dear Ethics Lawyer, I just received an email from an opposing lawyer with whom I’ve been negotiating a deal. It looks like he may have inadvertently hit “reply” rather than “forward,” as he appears to be talking to a business person at his client.

Before I realized that it was not meant for me, I read his recommendation that the client accept our offer, given problems with the validity of certain patents on assets involved. I’m confused on my obligations – at one time there was an ABA opinion that I think said I couldn’t keep or use this information. Is that still the rule? Am I supposed to destroy or delete this now? Do I tell him I received it? Can I and should I pass the info along to my client (it’s pretty material to their deal)?

Continue Reading November 1 Issue – Inadvertent Receipt of Confidential Information

Q: Dear Ethics Lawyer, I represent a corporate client in litigation. May I instruct or ask the client’s employees not to speak to opposing counsel about the case? May I instruct or ask the client’s former employees not to speak to opposing counsel about the matter?

Continue Reading July 15 Issue – Asking Current and Former Employees Not to Communication with Adverse Party

Q: Dear Ethics Lawyer, I represent a company threatened with suit. The opposing lawyer’s demand letter states that in the absence of settlement, she will file a lawsuit against our client on July 1, the last day of the statute of limitations. I know that she has made a counting mistake and that the limitations period actually runs a day earlier, on June 30. Am I obligated to correct her mistake, or can I simply let the time run? As a matter of professionalism, may I correct her mistake or does my duty to our client mandate that I stay silent?

Continue Reading February 15 Issue – Correcting Adversary’s Mistake